State v. Brown

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE : ID No. 1205025968A
' In and for Kent County
v.
: RK12-06-0541-01 DDeal Tier 4 (F)
ANSARA M. BROWN, : RK 12-09-0213-01 CCDW (F)
: RK12-09-0214-01 PDWDCF (F)
Defendant. : RK12-09-0216-01 Consp 2ncl (F)

RK 12-09-0211-01 POSSMarj+AF(M)

ORDER

Submitted: March 22, 2018
Decided: April 6 2018

On this 6th day of April, 2018 upon consideration of Defendant Ansara Brown’s
(“Mr. Brown’s”) Motion for Postconviction Relief, the Commissioner’s Report and
Recommendation (the “Report”), Mr. BroWn’s appeal, and the record in this case, it
appears that:

1. Mr. BroWn Was found guilty, following a jury trial on September 11, 2013, of
one count of Drug Dealing Tier 4, 16 Del. C. § 4752(1); one count of Possession of
Marijuana With Aggravating Factors, 16 Del. C. § 4764(1); one count of Tier 5
Possession, 16 Del. C. § 4752(3); one count of Carrying a Concealed Deadly Weapon, ll
Del. C. § 1442; one count of Possession of a Deadly Weapon During the Commission of
a Felony, 11 Del. C. § 1447; one count of Conspiracy in the Second Degree, 11 Del. C. §
512; and one count of Criminal Solicitation in the Second Degree, 11 Del. C. § 502.

2. On October 17, 2013, the State filed a motion to declare Mr. BroWn an habitual
offender. The Court granted the motion on October 30, 2013 and sentenced him to life
in prison on both the Drug Dealing and Tier 5 Possession of Cocaine charges. On the
remaining charges, the Court sentenced Mr. BroWn to a total of twenty-seven years

unsuspended time.

3. Mr. Brown filed a timely Notice of Appeal to the Delaware Supreme Court.
At oral argument, Mr. Brown’s counsel raised the issue before the Supreme Court that
one of the Office of ChiefMedical Examiner’s employees who had handled the evidence
seized in his case had been indicted for improper conduct in evidence handling. The
Supreme Court remanded the case permitting Mr. Brown to file a Motion for New Trial.
On remand, the Superior Court denied the motion. After further appellate proceedings,
the Delaware Supreme Court found no merit in any of Mr. Brown’s claims and affirmed
his conviction and sentence.

4. Mr. Brown then filed his initial postconviction motion on October 2, 2015 and
several amended motions thereafter. His appointed counsel ultimately filed a motion to
withdraw because he concluded that the motion was without merit and that no meritorious
grounds for relief existed. The Court granted that motion on May 9, 2017. Mr. Brown
then supplemented his Rule 61 motion and after several revised briefing schedules, the
Commissioner considered his amended motion.

5. The Commissioner recommended in her Report that the Court deny Mr.
Brown’S Motion. The Court has reviewed the Report and considered Mr. Brown’s
appeal challenging the Report, which raises no new issues.

NOW, THEREFORE, after a de novo review of the record in this action, review
of the Report, and considering Mr. Brown’s appeal challenging the Report;

IT IS HEREBY ORDERED that the Commissioner’s Report and
Recommendation attached as Exhibit “A” is adopted by the Court in its entirety.
Accordingly, Mr. Brown’s Motion for Postconviction Relief pursuant to Superior Court

Criminal Rule 61 is DENIED.

/s/Jeffrey J Clark
Judge

EXhibit A

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STATE OF DELAWARE, ) ln and for Kent County

)
v. ) RK12-06-0541-01DDeairier4 (F)

) RK12-09-0213-01 CCDW (F)
ANSARA M. BROWN, ) RKl2-09-0214-01 PDWDCF (F)
) RK12-09-0216-01 Consp 2nd (F)
Defendant. ) RK12-09-0211-01 Poss Marij+AF (M)
ID No. 1205025968A )

COMMISSIONER'S REPORT AND RECOMMENDATION

Upon Defendant's Amended Motion for Postconviction Relief
Pursuant to Superior Court Criminal Rule 61

Nicole S. Hartman, Esquire, Deputy Attorney General, Departrnent of Justice, for the
State of Delaware. »

Ansara M. Brown, Pro se.

FREUD, Commissioner
February 2, 2018

The defendant, Ansara M. B'rown (“Brown”) was found guilty, following a jury
trial on September 11, 2013, of one count of Drug Dealing Tier 4, 16 Del. C. §
4752(1); one count of Possession of Marijuana with Aggravating Factors, 16 Del. C.

State v. Brown
ID No. 1205025968A
February 2, 2018

C. § 4764(1); one count of Tier 5 Possession, 16 Del. C. § 4752(3); one count of
Carrying a Concealed Deadly Weapon, '11 Del. C. § 1442; one count of Possession
of a Deadly Weapon During the Commission of a Felony, 11 Del. C. § 1447; one
count of Conspiracy in the Second Degree, 11 Del. C. § 512 and one count of
Criminal Solicitation in the Second Degree, 11 Del. C. § 502. Prior to trial the
State severed one count of Possession of a Deadly Weapon By a Person Prohibited
and entered nolle prosequis for one count of Possession of Marijuana and one count
of Racketeering. On October 17, 2013 the State filed a motion to declare Brown an
habitual offender. The Court granted the motion on October 30, 2013 and sentenced
Brown to life in prison on both the Drug Dealing and Tier 5 Possession of Cocaine
charges. On the remaining charges he was sentenced to a total of twenty-nine years
and six months, suspended after serving twenty-seven years Level V, for probation.l

A timely Notice of Appeal was filed with the Delaware Supreme Court by
Brown’s Trial Counsel. In the appeal the following claims were raised: (1) that the
trial court abused its discretion in admitting the evidence obtained as a result of the
traffic stop; (2) that the trial court abused its discretion in admitting into evidence
telephone calls that had been intercepted by the court-ordered wiretap; and (3) that

the trial court abused its discretion by admitting cocaine into evidence when the State

1 The Sentence Order issued October 29, 2013 merged criminal action number IK12-09-
0217, Criminal Solicitation Z“d with number IK12-09-0216, Conspiracy 2nd pursuant to 11 Del.
C. 206(b)(2). On December 16, 2014 a Corrected Sentence Order was signed by Resident Judge
Graves. The corrections were the removal of number IK12-09-0212,Tier 5 Possession which was
merged with number IK12-06-0541, DDeal. Charge number IK12-06-0541 was amended from
DDeal Tier 2 + AF to DDeal Tier 4.

State v. Brown
ID No. 1205025968A
February 2, 2018

failed to establish an adequate chain of custody.2

At oral argument Brown’s counsel informed the Supreme Court that one of the
Office of Chief` Medical Examiner’s (“OCME”) employees who had handled the
evidence seized in Brown’s case had been indicted of alleged improper practice. The
Supreme Court remanded the case so that Brown could file a Motion for New Trial.
On remand, the Superior Court denied the motion. Back at the Supreme Court the
parties filed supplemental briefs concerning the denial of the new trial motion. The
Delaware Supreme Court found no merit in any of the claims and affirmed Brown’s

conviction and sentence on June 17 , 2015 stating in part:

We conclude that the Superior Court Was within its
discretion to deny Brown’s motion for a new trial.
Although sloppy evidence-handling practices and
potentially worse behavior by OCME employees is
disappointing and regrettable, there is no rational basis to
infer that any sloppiness or other improprieties at OCME
resulted in any injustice to Brown. Brown admits that he
possessed cocaine in more than sufficient amount to justify
his convictions, and there was overwhelming evidence of
his guilt separate from the drugs seized from him.
Accordingly, we affirm the Superior Court’s denial of his
motion for new trial.3

Brown filed his initial postconviction motion on October 2, 2015 and several

amended motions thereafter. Ultimately Christopher S. Koyste, Esquire (“Appointed

2 Brown v. State, 117 A.3d 568, 574 (2015).

3 Brown at 570-571.

State v. Brown
ID No. 1205025968A
February 2, 2018

Counsel”) was appointed to represent Brown in his postconviction motion pursuant
to Superior Court Criminal Rule 61 . After an extremely thorough and conscientious
review of the facts, the record and the law in the case, Appointed Counsel filed a
motion to withdraw as counsel having concluded that the motion was wholly without
merit and that no meritorious grounds for relief existed. Brown was sent a copy of
the motion to withdraw and given 30 days to file a response.

Next Brown moved to supplement his Rule 61 motion on April 13, 2017.
Appointed Counsel’s motion to withdraw was granted on May 9, 2017. After several
revised brief schedules the matter finally completed briefing and was sent for

decision.4

FACTS
Following are the facts as set forth by the Delaware Supreme Court:

Brown’s arrest resulted from an extensive police
investigation into an alleged drug trafficking syndicate run
by Galen Brooks.FN 2 In addition to using undercover
purchasers and confidential informants, the police
obtained a warrant to wiretap Brooks’ cell phones, and
conducted video surveillance Brooks’ house and physical
surveillance of the entrance to his neighborhood On May
31, 2012, officers listened to four calls, in which Brooks

4 Brown’s Trial Counsel, Sandra W. Dean, Esquire passed away before this matter was
filed therefore the Court and the parties did not have the benefit of her input concerning Brown’s
allegations of ineffective assistance of counsel. Nevertheless, Appointed Counsel concluded that
Ms. Dean represented Brown in an appropriate and effective manner based on the record.

4

State v. Brown
ID No. 1205025968A
February 2, 2018

and an unknown man arranged for the man to buy cocaine
from Brooks. In the last call, Which took place at 5:35
p.m., the man told Brooks that he would be at Brooks’
house in approximately seven minutes to pick up the
drugs. The officers listening to the telephone
conversations, including Sergeant Lance Skinner of the
Delaware State Police, relayed that information to the
officers conducting surveillance. Sergeant Skinner then
travelled to the area near Brooks’ house to wait for the
unknown man.

At the same time, Detective Jordan Miller of the Dover
Police Department was conducting video surveillance of
Brooks’ house. Detective Miller watched another man,
John Price, leave Brooks’ home at 5:48 p.m.FN3 The
police were familiar with Price’s voice and telephone
number from the investigation and believed that Price was
not the unknown man from the four telephone calls.
Three minutes after Price left, or roughly sixteen minutes
after the fourth phone call, and unknown woman and a
man later identified as Ansara Brown arrived at Brooks’
home. Brooks came out to meet them and they went
around the side of the house, out of view of the camera.
Approximately five minutes later, Brown and the woman
left Brooks’ home. Brooks himself left a minute later,
indicating to the police that he was no longer waiting for
the unknown man from the telephone call to arrive.
Detective Miller informed the other officers involved with
the investigation

Sergeant Skinner followed Brown’s vehicle in his patrol
car for two to three miles after it left Brooks’ house.
Sargent Skinner then stopped the vehicle and asked

State v. Brown
ID No. 1205025968A
February 2, 2018

Brown to step outside on the pretext that there was a
problem with his registration. Sergeant Skinner testified
at Brown’s trial that he recognized Brown’s voice from
the telephone calls earlier that day.FN4 when Brown
stepped out of his vehicle, Sergeant Skinner arrested him.
He then conducted a pat-down search of Brown and found
what he described as two bags of cocaine contained in a
pouch in brown’s front pocket. One of the bags contained
three smaller bags, for a total of five bags. Sergeant
Skinner transported the drugs to the police station, Where
two other officers, sergeant Jeremiah Lloyd and Master
Corporal Jeffrey Lavere, field-tested and weighed the
contents and sealed the bags to transport to the Office of
the Chief Medical Examiner. According to Sergeant
Skinner’s testimony at trial, three of the bags contained
crack, and one of the bags contained powder cocaine.FNS
There was also a small amount of powder cocaine in the
bag that contained the three smaller bags. The Delaware
State Police Evidence Report indicated that the bags
together contained approximately 1.2 grams of powder
and 20 grams of crack cocaine.FN6

Sergeant Skinner searched Brown again at the police
station and found a small bag of marijuana and a pair of
brass knuckles in Brown’s pocket. In a statement to the
police, Brown admitted that he had an ounce of cocaine
(approximately 28 grams) and that he intended to sell it.
He gave the police his cell phone number, which matched
the one captured on the wiretap. After he was released,
Brown was also recorded on a wiretap speaking on the
phone with Brooks, describing his arrest and the seizure
of the drugs, and assuring Brooks that he would not ‘fall
short.’FN7

State v. Brown
ID No. 1205025968A
February 2, 2018

Ultimately, fourteen defendants were indicted for their
involvement in the drug syndicate, including Brooks and
Brown.FN8 Brown moved to sever his case from the other
defendants, which the Superior Court granted. Brown
also filed two pre-trial motions, one to suppress the
evidence seized from him following his arrest and another
to suppress the evidence from the wiretaps. The Superior
Court denied both of those motions.

At Brown’s trial, Sergeant Skinner, Sergeant Lloyd, and
Master Corporal Lavere all testified about the cocaine
seized from Brown. Despite the evidence report filed by
Sergeant Lloyd and Master Corporal Lavere indicating
that Sergeant Skinner had seized 1.2 grams of powder
cocaine from Brown, Sargent Skinner testified that he had
collected 8 grams of powder cocaine from Brown, in
addition to the three bars of crack cocaine.FN9 Patricia
Phillips, the OCME forensic examined responsible for
testing the cocaine seized from Brown, also testified at
trial. She stated that when she received the envelope
containing the drugs seized from Brown, the seal was
intact and there was no sign of tampering. Phillips’ report
indicated that there were five bags of cocaine, but in
different quantities than the officers indicated: one bag of
‘white powder’ containing 7.03 grams; one bag of ‘white
powder’ containing 0.67 grams; and three bags of an ‘off
White chunky substance’ containing approximately 15.53

grams.FNl°

During Phillips’ testimony, Brown objected to the admission of
the cocaine evidence. He contended that the discrepancies
between the Police Evidence Report and the Medical Examiner’s
report suggested that there were concerns With the integrity of

State v. Brown
ID No. 1205025968A
February 2, 2018

the evidence, and thus its admissibility.FNll In particular, Brown
emphasized that the police officers’ account of which bags
contained crack or powder did not match the Medical
Examiner’s report.Fle Brown’s attorney requested that she be
able to question Phillips about the ‘transport from Troop 3 to the
medical examiner’s office.’FNB The Superior Court denied that
request, noting that 10 Del. C. § 4331 defines the chain of
custody as the ‘seizing officer, the packaging officer, and the
medical examiner,’ all of whom had testified at Brown’s trial,
which Brown’s attorney conceded.FNl4

In responding to Brown’s objection, Phillips clarified in a
sidebar with the superior Court and both attorneys that her
references to particular bags were not intended to correspond to
the officers.F N 15 The State pointed out that both reports described
three bags of crack cocaine and one bag of powder cocaine, in
addition to the outer bag, which contained a small amount of
powder cocaine, although there were Weight differences between
the reports of powder and crack.F N16 Phillips also explained
during the sidebar that ‘sometimes powder clumps
together and it appears to be a chunky substance When it is more
powdery.... My description is that it’s chunky. That’s not a
clinical or chemical differentiation. It is a description of how the
evidence appears.’FNl7 She noted that because Delaware’s drug
laws do not differentiate between powder and crack cocaine, she
did not specifically delineate the form of the cocaine beyond its
appearance in her report.FN 18 Phillips also explained that she did
not weigh the drug packaging, which the State offered as an
explanation for the discrepancy between the weight of the
powder cocaine she testified to compared to Sergeant Skinner’s
testimony, even though the total amount of cocaine she reported
(23.23 grams) was more than that reported by the police (21.2
grams). The Superior Court determined that the drug evidence

State v. Brown

ID No. 1205025968A

February 2, 2018

Was admissible, noting that ‘I don’t think there’s any reasonable
possibility that the drugs got mixed up with some other drugs
that were not on [Brown’s] person into those envelopes. . . .’FN19

Following a three day trial, Brown was convicted by the jury of
one count each of drug dealing at Tier 4, aggravated possession
of a controlled substance, carrying a concealed deadly weapon,
possession of a deadly weapon during the commission of a
felony, conspiracy in the second degree, criminal solicitation in
the second degree, and possession of marijuana. The Superior
Court sentenced Brown as a habitual offender to two life
sentences for the charges of drug dealing and aggravated
possession of a controlled substance. Brown was sentenced to
twenty-nine years and six months’ imprisonment, suspended
after 27 years, on the remaining charges.

FN2 See State v. Brooks, 2013 WL 4051049 (Del. Super. July 30,

FN3

FN4

FN5

FN6

FN7

FN8

2013); see also Ayers v. State, 97 A.3d 1037, 1038 (Del. 2014.)

The record does not indicate the time that price arrived at
Brooks’ house.

App. To Opening Br. At 66 (Trial Test. Of Skinner, Sept. 9,
2013).

Id. At 74.
Opening Br., Ex. F (Delaware State Police Evidence Report).

State v. Brown, ID # 1205025968A, at 5 *Del. Super. Dec. 18,
2014) (letter order).

See App. To Opening Br. At 8-47 (Indictment by the Grand

State v. Brown

ID No. 1205025968A

February 2, 2018

FN9

FNlO

FNl 1

FN 12

FN13

FN14

Jury).

App. To Opening Br. at 143 (Trial Test. Of Skinner, Sept. 9,
2013).

App. To Supp Opening Br. At 67 (Controlled Substances
Laboratory Report).

App. To Answering Br. At 173 (Tr. Of Arguments Sept. 10,
2013).

See App. To Answering Br. At 161-63 (Tr. Of Arguments,
Sept. 10, 2013).

Id. At 175.

Id. During oral argument before this Court, the State’s attorney
suggested that Brown requested to cross-examine James
Woodson, the OCME courier who handled the drugs seized
from Brown and Who Was later indicted for allegedly tampering
with evidence. See Oral Arg’t Tr. (May 28, 2014), available
at hgp://courts.delaware. gov/supreme/oralarg/video/2014-05~
28_603_2013_Brown_v_State_of_Delaware .mD4 . Bas'ed on the
transcript of the trial in the record, though, it does not appear
that Brown ever suggested that Woodson should testify. See
App. To Answering Br. At 175 (Tr. Of Arguments Sept. 10,
2013). Cf. Milligan v. State, 116 A 3d 1232, 1237-40, 2015
WL 3622880, at *4-5 (Del. 2015) (discussing the requirements
to establish a chain of custody under Delaware and federal law,
and observing that the U.S. Supreme Court held in Melendez-
Diaz v. Massachusetts, 557 U.S. 305, 129 S.C. 2527, 174
L.Ed.2d 314 (2009), that “not every individual who may have
relevant testimony for the purpose of establishing chain of

10

State v. Brown
ID No. 1205025968A
February 2, 2018

custody must appear in person as part of the prosecution’s
case”).

Fle See ia'. At 170.
FN16 See id. At 171-72.

FN17 App. To Opening Br. At 167-68 (Tr. Of Arguments, Sept. 10,
2013).

Fle Ia'. At 167.

Fng Id. At 178.

BROWN’S CONTENTIONS
In his original and first amended motion, Brown raises the following grounds
for relief each of which was thoroughly addressed by Appointed Counsel in his
Motion to Withdraw:

Ground one: Illegal Search and Seizure.
Trial Court erred as a matter of law when it
denied Brown’s motion to suppress as police
violated the Delaware Constitution when they
stopped him based on the pretext of a motor
Vehicle violation for a non-traffic related
investigation

Ground two: Freestanding Innocence Claim.

Based upon newly discovered scientific
evidence is cognizable in a postconviction

11

State v. Brown
ID No. 1205025968A
February 2, 2018

superior court criminal rule 61(i)(5).

Ground three: Ineffective Assistance of Counsel.
Trial lawyer failure to challenge and establish
the probable cause of warrant and filing
proper motions, resulting in Brady material
subjected defendant to a more lengthy
sentence.

After the filing of Appointed Counsel’s Motion to Withdraw Brown filed
several “supplements” raising additional claims that the State in its response

characterized as follows:

(A) Illegal Sentencing Scheme,

(B) Dash cam footage,

C) Sentencing timing,

(D) Chain of custody for testing,

(E) DMV record,

(F) OCME performance deficiency, and
(G) Record expansion.

DISCUSSION
Under Delaware law, the Court must first determine whether Brown has met

the procedural requirements of Superior Court Criminal Rule 61(i) before it may

12

State v. Brown
ID No. 1205025968A
February 2, 2018

consider the merits of the postconviction relief claims.5 Under Rule 61,
postconviction claims for relief must be brought within one year of the conviction
becoming final.6 Brown’s motion was filed in a timely fashion, thus the bar of Rule
61(i)(l) does not apply to the motion. As this is Brown’s initial motion for
postconviction relief, the bar of Rule 61(i)(2), which prevents consideration of any
claim not previously asserted in a postconviction motion, does not apply either.

Grounds for relief not asserted in the proceedings leading to judgment of
conviction are thereafter barred unless the movant demonstrates: (1) cause for relief
from the procedural default; and (2) prejudice from a violation of the movant's rights.7
The bars to relief are inapplicable to a jurisdictional challenge or “to a colorable claim
that there was a miscarriage of justice because of a constitutional violation that
undermined the fundamental legality, reliability, integrity or fairness of the
proceedings leading to the judgment of conviction.”8

Brown’s third ground for relief in his original and Amended motion and his
argument concerning his sentence as an habitual offender Argument A are premised
to some extent on allegations of ineffective assistance of counsel. Therefore Brown

has alleged sufficient cause for not having asserted these grounds for relief at trial and

5 Bailey v. State, 588 A.Zd 1121, 1127 (Del. 1991).
6 Super. Ct. Crim. R. 61(i)(1).
7 Super. Ct. Crim. R. 61(i)(3).
8 Super. Ct. CI‘iIIl. R. 61(i)(5).
13

State v. Brown
ID No. 1205025968A
February 2, 2018

on direct appeal.

Brown’s first ground for relief concerning suppression issues and his
Arguments B, E and F are simply are simply restatements of the argument[s?] he
previously raised at trial and in his direct appeal. Superior Court Criminal Rule
61(i)(4) bars any ground for relief that was formerly adjudicated unless
reconsideration of the claim is warranted in the interest of justice.9 Brown raised
these claims before and they were found meritless. Brown has made no attempt to
argue Why reconsideration of these claims are warranted in the interest of justice. The
interest of justice exception of Rule 61(i)(4) has been narrowly defined to require that
the movant show that “subsequent legal developments have revealed that the trial
court lacked the authority to convict or punish” him.10 Brown has made no attempt
to demonstrate why these claims should be revisited. This Court is not required to
reconsider Brown’s claims simply because they are “refined or restated.”11 For this
reason, those grounds for relief should be dismissed as previously adjudicated under
Rule 61(i)(4).

Brown’s second ground for relief and Arguments C, D and G were not
previously raised and he has given no reason for the failure to have raised them

earlier. They are therefore clearly barred by Superior Court Criminal Rule 61(i)(3)

9 Super. Ct. Crim. R. 61(i)(4).

10 Maxion v. State, 686 A.2d 148, 150 (Del. 1996) (quoting Flamer v. State, 585 A.2d
726, 746 (Dei. 1990)).

11 Rl'ley v. State, 585 A.2d 719, 721 (Del. 1990).
14

State v. Brown
ID No. 1205025968A
February 2, 2018

for failure to demonstrate cause and prejudice for his failure to have raised them
earlier.

Brown’s ineffective assistance of counsel claims are not subject to the
procedural default rule, in part because the Delaware Supreme Court will not
generally hear such claims for the first time on direct appeal. For this reason, many
defendants, including Brown, allege ineffective assistance of counsel in order to
overcome the procedural default. “However, this path creates confusion if the
defendant does not understand that the test for ineffective assistance of counsel and
the test for cause and prejudice are distinct, albeit similar, standards.”12 The United
States Supreme Court has held that:

[i]f the procedural default is the result of ineffective
assistance of counsel, the Sixth Amendment itself requires
that the responsibility for the default be imputed to the
State, which may not ‘conduc[t] trials at which persons
who face incarceration must defend themselves without
adequate legal assistance;’ [i]neffective assistance of
counsel then is cause for a procedural default.13

A movant who interprets the final sentence of the quoted passage to mean that he can
simply assert ineffectiveness and thereby meet the cause requirement will miss the

mark. Rather, to succeed on a claim of ineffective assistance of counsel, a movant

12 State v. Gattz`s, 1995 WL 790961 (Del. Super.).
13 Murray v. Carf'ier, 477 U.S. 478, 488 (1986).
15

State v. Brown
ID No. 1205025968A
February 2, 2018

must engage in the two part analysis enunciated in Stricklana' v. Washington” and
adopted by the Delaware Supreme Court in Albur;v v. State,15

The Stricklana' test requires the movant show that counsel's errors were so
grievous that his performance fell below an objective standard of reasonableness16
Second, under Stricklana' the movant must show there is a reasonable degree of
probability that but for counsel's unprofessional error the outcome of the proceedings
would have been different, that is, actual prejudice.17 In setting forth a claim of
ineffective assistance of counsel, a defendant must make and substantiate concrete
allegations of actual prejudice or risk summary dismissal.18

Generally, a claim for ineffective assistance of counsel fails unless both prongs
of the test have been established.19 However, the showing of prejudice is so central
to this claim that the Strickland court stated "[i]f it is easier to dispose of an

ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect

14 466 U.S. 668 (1984).

,_.

5 551 A.2d 53, 58 (Del. 1988)§
16 Strickland, 466 U.S. at 687; see Dawson v. State, 673 A.2d 1186, 1190 (Del. 1996).

17 Id.

18 See e.g., Outten v. State, 720 A.2d 547, 557 (Del. 1998) (citing Boughner v. State,
1995 WL 466465 at *1 (Del. Supr.)).

19 Strickland, 466 U.S. at 687.
16

State v. Brown
ID No. 1205025968A
February 2, 2018

will often be so, that course should be followed."20 In other words, if the Court finds
that there is no possibility of prejudice even if a defendant's allegations regarding
counsel's representation were true, the Court may dispose of the claim on this basis
alone.21 Furthermore, Brown must rebut a "strong presumption" that trial counsel’s
representation fell within the "wide range of reasonable professional assistance," and
this Court must eliminate from its consideration the "distorting effects of hindsight

when viewing that representation."22

Turning briefly to Brown’s specific claims he makes two allegations that Trial
Counsel acted ineffectively, including claims that she failed to call the technician, Mr.
Woodson from the OCME who had mishandled the drug evidence and that she failed
in her representation concerning Brown’s being sentenced as an habitual offender.
However, Brown fails to identify how he was prejudiced by any of these alleged
deficiencies As Appointed Counsel noted in his Motion to Withdraw concerning the
failure to call Mr. Woodson “Unfortunately, this possible claim has no merit as the
overwhelming evidence presented at trial rendered any claim of prejudice from Trial
Counsel’s ineffectiveness meritless.” The failure to establish prejudice is fatal to

Brown’s claim and it must be denied.

20 Id. at 697.
21 State v. Gattis, 1995 WL 790961 (Del. Super.).
22 Slrickland, 466 U.S. at 689; Wl'ighl v. State, 671 A.2d 1353, 1356 (Del. 1996).

17

State v. Brown
ID No. 1205025968A
February 2, 2018

Brown’s second ground asserts that the State violated its Brady23 obligations
by failing to disclose exculpatory and impeachment information regarding the
OCME.24 Unfortunately for Brown, even if the State violated its Brady obligations,
there could be no prejudice as the State presented overwhelming evidence at trial.

A Brady violation is a Constitutional claim based upon a violation of the Due
Process Clause of the Fourteenth Amendment of the U.S. Constitution.25 Similarly,
Article I Section 7 of the Delaware Constitution states in relevant part that ‘nor shall
he or she be deprived of life, liberty or property, unless by the judgment of his or her
peers or by the law of the land.”26 The United States Supreme Court in Brady held
that “suppression by the prosecution of evidence favorable to an accused violates due
process when the evidence is material to either guilt or punishment, irrespective of
good faith or bad faith of the prosecutor.”27 Brady requires the prosecutor disclose

all materially exculpatory and impeachment evidence.28 The timing of disclo sure must

23 Brady v. Mal'yland, 373 U.S. 83 (1963).
24 A256.

25 Brady at 87.

26 Del. COIlSt. Art. I, § 7,

27 373 U.S. at 87.

28 Id.; U.s. v. Bagley, 473 U.s. 667, 676 (1985); See Giglio v. United szazes, 405 U.s.
150, 154 (1972).

18

State v. Brown
ID No. 1205025968A
February 2, 2018

be made in order for defense counsel to be able to use the material effectively.29
Courts perform a three prong analysis to determine if a Brady violation
occurred.3 11 A Brady violation requires: 1) exculpatory or impeaching evidence exists
that is favorable to Defendant; 2) “that evidence is suppressed by the State,” and 3)
Defendant is prejudiced by the suppression If each of these prongs is met, a Brady
violation has occurred and the verdict must be vacated.31 Under prong three, a
criminal defendant suffers prejudice if there is a reasonable probability that had the
Brady material been disclosed to the defense, the result of the proceeding Would have
been different.32 “The question is not whether the defendant would more likely than
not have received a different verdict with the evidence, but whether in its absence he
received a fair trial, understood as a trial resulting in a verdict worthy of confidence
A reasonable probability of a different result is shown when the government’s

evidentiary suppression undermines confidence in the outcome of the trial.”33

29 Cooper v. State, 992 A.2d 1236 (Del. 2010) (See also Rose v. State, 542 A.2d 1196,
1199 (Del. 1988) (“[w]hen a defendant is confronted with delayed disclosure of Brady material,
reversal will be granted only if the defendant was denied the opportunity to use the material”).

311 Starling v. State, 882 A.2d 747, 756 (Del. 2005) (citing Strickler v. Greene, 527 U.S.
263, 282-82 (1999)).

31 Id.
32 Bagley, 473 U.s. at 682.

33 Kyles, 514 U.S. at 434 (quoting Bagley, 473 U.S. at 678); see also Strickler, 527 U.S.
at 289 (petitioner must demonstrate “‘a reasonable probability’ that the result of the trial would
have been different if the suppressed [information] had been disclosed to the defense”).

19

State v. Brown
ID No. 1205025968A
February 2, 2018

Unfortunately for Brown, there is not a reasonable probability of a different
result if the State had complied with its Brady obligations due to the overwhelming
evidence presented at trial. At trial, the State introduced the recorded phone calls
between Brown and Brooks which detailed an agreement between Brooks and Brown
to engage in a drug transaction at Brooks’ residence.34 The video surveillance
admitted into evidence showed, consistent with the last phone call between Brown
and Brooks, Brown arriving at Brooks’ residence and interacting with Mr. Brooks.35
The surveillance video also showed that approximately five minutes after arriving
Brown lefi Brooks’ residence and then a minute later Brooks left his residence.36

Additionally, the State admitted into evidence Brown’s own statement to law
enforcement In this statement, Brown specifically admitted to possessing an ounce
of cocaine and described to law enforcement his intent to re-sell the drugs.37 Also
during his statement, Brown provided law enforcement his cell phone number which
matched the phone number used by the “then unknown male” to arrange a drug
transaction with Brooks.38

Furthennore, the State introduced into evidence a recorded wiretap phone call

34 Brown, 117 A.3d at 571; A13-20.
33 Id. At 571; AZO, A57-60, A61-62.
36 Id.
37 Id. At 572; A21-27, A145-46.
38 Id. At 572.
20

State v. Brown
ID No. 1205025968A
February 2, 2018

between Brown and Brooks that took place after Brown was released from custody.
During this call, Brown could be heard describing his arrest and the seizure of the
drugs.39 It is also worth noting that the alleged cocaine recovered fiom Brown’s
person was retested by NMS Labs and determined to be cocaine.40

It is apparent that there was overwhelming evidence presented at trial. As such
it is highly unlikely that the State’s disclosure of exculpatory and impeachment
information regarding the reliability of the OCME’s work product and employees
would have changed the result.‘11 Thus, this claim has no merit.

Brown’s Arguments B, E and F were argued during trial and/or direct appeal.
These are procedurally barred pursuant to Superior Court Criminal Rule 61(i)(4).
Argument G, the Record Expansion request, contains documents from a different
case. It appears to be a discovery response in a case against lamar Campbell, who
was not a co-conspirator.

Brown’s Argument D complains that the State did not prove chain of custody
for the re-testing of the cocaine at NMS Labs in Pennsylvania. The State did not enter
the NMS Labs report into evidence during a trial. Rather, the re-testing was ordered
sua sponte when evidence of the OCME wrongdoing came to light. The State

provided the Court with the report as requested. The Court was the custodian of the

33 Id. Ai 572; A28-31; A158-59.
40 Id. Ar575; A227-29.
31 Id. Ai 581.
21

State v. Brown
ID No. 1205025968A
February 2, 2018

cocaine at the time of the re-testing. The cocaine could not be released to the officer
without a Court Order. The NMS Labs report was consistent with the OCME report.

Brown’s Argument C suggests issues with the timing of sentencing According
to the Superior Court Criminal Docket, Brown was sentenced on October 29, 2013.
The sentence was docketed on October 30, 2013. The habitual declaration was
docketed on October 31, 2013. This claim is without merit.

Brown’s Argument A complains about the declaration as an habitual offender
pursuant to 11 Del. C. §§ 4214(a) and (b). In the State’s Motion to have Brown
declared an habitual offender, the motion only asked for the sentencing under
subsection (b). However, the motion listed four felony convictions and included
certified convictions for each. During Brown’s Sentencing hearing, the Court
declared him an habitual offender and sentenced Brown to Life on both Drug Dealing
and Aggravated Possession.42 The Court then sentenced Brown, pursuant to §
4214(a), on Conspiracy 2“‘1 Degree and Possession of a Deadly Weapon During the
Commission of a Felony to an aggregate 27 years Level V.

Brown asserts the sentencing pursuant to subsection (a) violated his due
process rights because the State’s motion only sought sentencing under subsection
(b). Brown says this subjected him to a longer sentence. There can be no sentence
longer than Life. The State’s motion provided the Court with enough certified

convictions for designation under either or both subsections This claim is without

42 The sentences for Drug Dealing and Aggravated Possession merged in December 2014.

22

State v. Brown
ID No. 1205025968A
February 2, 2018

merit.
CONCLUSION

After reviewing the record in this case, it is clear that Brown has failed to
avoid the procedural bars of Superior Court Criminal Rule 61(i). A review of
Appointed Counsel’s motion to withdraw and the record clearly shows that his Trial
Counsel represented Brown in a competent fashion and was not ineffective.
Additionally, Brown has failed to demonstrate any concrete prejudice.
Consequently, I recommend that Brown’s motion be denied as procedurally barred
by Rule 61(i)(3) for failure to prove cause and prejudice and previously adjudicated

under Superior Court Criminal Rule 61(i)(4).

/EMC:57

Commissioner Andrea M._Frreud

AMF/dsc

oc: Prothonotary

cc: Honorable Jeffi'ey J Clark
Nicole S. Hartman, Esquire
Chiistopher S. Koyste, Esquire
Ansara M. Brown, VCC

23